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Calderon v. Wheeler

July 28, 2009

VICTOR CALDERON, PLAINTIFF,
v.
SANDRA A. WHEELER, NURSE; LORI MONTROY, NURSE ADMINISTRATOR; DONNA PEPPIN, NURSE; WENDY MCINTOSH, NURSE; AND JACKIE COLEMAN, OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action filed by Victor Calderon ("Plaintiff") are (1) motions for summary judgment filed by Defendants Sandra A. Wheeler, Lori Montroy, Donna Peppin, Wendy McIntosh and Jackie Coleman (Dkt. Nos. 116, 118), (2) United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Defendants' motions be granted (Dkt. No. 135), and (3) Plaintiff's Objections to the Report-Recommendation. (Dkt. Nos. 137, 138, 139.) For the reasons set forth below, the Report-Recommendation is accepted and adopted, and Defendants' motions are granted, and Plaintiff's Amended Complaint is dismissed.

I. BACKGROUND

On January 22, 2007, after being granted permission by the Court, Plaintiff filed an Amended Complaint in this action, asserting claims against the following five DOCS employees: Nurse Sandra A. Wheeler at Coxsackie Correctional Facility, Nurse Donna Peppin and Nurse Wendy McIntosh at Franklin Correctional Facility, Lori Montroy, a Nurse Administrator at Franklin Correctional Facility, and Jackie Coleman, a corrections officer at Franklin Correctional Facility. (Dkt. No. 16.)

Construed with the utmost liberality, Plaintiff's Amended Complaint alleges that Defendants were deliberately indifferent to his serious medical needs, including those arising from a buttock cyst and a condition causing him to experience low testosterone levels, in violation of the Eighth Amendment. (Id.) In addition, Plaintiff's Amended Complaint alleges in an attachment to his Amended Complaint that he was issued a false misbehavior report, subject to verbal harassment, and denied recreation by the Defendants assigned to work at Franklin Correctional Facility. (Id.)

On July 30, 2008, Defendant Wheeler filed a motion for summary judgment seeking dismissal of all claims, arguing that Plaintiff (1) has failed to establish a claim for medical indifference, and (2) has failed to exhaust administrative remedies. (Dkt. No. 116.) On July 31, 2008, Defendants Montroy, Peppin, McIntosh, and Coleman submitted their motion for summary judgment seeking dismissal of all claims against them, arguing that Plaintiff (1) has failed to establish a medical indifference claim, and (2) has failed to exhaust administrative remedies.

(Dkt. No. 118.) Plaintiff did not submit a response to either motion.

On March 30, 2009, Magistrate Judge Peebles issued a Report-Recommendation recommending that the action be dismissed in all respects. (Dkt. No. 135.) Familiarity with the grounds of Magistrate Judge Peebles' Report-Recommendation is assumed in this Decision and Order.

On April 13, 2009, Plaintiff filed the first of three Objections to the Report-Recommendation. (Dkt. No. 137.) Plaintiff's subsequent Objections were filed on April 20, 2009, and April 24, 2009. (Dkt. Nos. 138, 139.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing ...


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